July 2, 2008

A military law blog pointed out over the weekend that Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty. The revisions were in the National Defense Authorization Act that year. President Bush signed that bill into law and then, last September, carried the changes forward by issuing Executive Order 13447, which put the provisions into the 2008 edition of the Manual for Courts-Martial.

Anyone in the federal government — or anywhere else, for that matter — who knew about these developments did not tell the court. Not one of the 10 briefs filed in the case, Kennedy v. Louisiana, mentioned it....

Dwight Sullivan, a colonel in the Marine Corps Reserve who now works for the Air Force as a civilian defense lawyer handling death penalty appeals.

Mr. Sullivan was reading the Supreme Court’s decision on a plane and was surprised to see no mention of the military statute. “We’re not talking about ancient history,” he said in an interview. “This happened in 2006.”

What an immense shame and embarrassment for everyone involved in this case — especially for all of the Justices of the Supreme Court!

It is shameful...in this day and age of Westlaw and Lexis, how could something like this happen? Amazing. Somebody remind me again why we are paying all these all those tax dollars?And by the way, tangentially, what ever happened to the Brandeis Brief?

It does seem embarrassing but I wonder how relevant it might be. My guess is - and it is only a guess - that the UCMJ may have harsher penalties for a wide range of offenses than would be acceptable or the norm in the civilian arena.

Several years ago I defended a soldier on a rape charge [two adults, the issue was validity of consent]. The prosecutor advises the command whether to 'prefer it capital', meaning that the death penalty is a possible punishment. To prefer something capital affords additional steps/hearings/safeguards for the accused.

The threat of death does make the accused think long and hard about taking the plea agreement or going for door number two [trial].

I think it's likely that Justice Kennedy will issue a corrected opinion, since the mandate hasn't issued yet.

What will be interesting to see is whether the revised opinion contains more than perfunctory treatment (probably in a footnote) of this rather significant contrary data point regarding the "evolving standards of decency."

Ger: You're right, the UCMJ does indeed prescribe some harsher punishments than its civilian counterparts. But it's very hard to argue  and, indeed, it would be very insulting to argue  that our military personnel don't count at least as one meaningful segment of contemporary society.

To Ger - not really. Other than in areas the civilian world doesn't really have, for the most part (neglect of duty, insubordination, etc) the UCMJ is not much different from the penal code of most states. The maximum punishments are determined by the Manual for Courts Martial, which can be seen here http://usmilitary.about.com/od/punitivearticles/a/mcm.htm

As to failing to realize what was going on with the UCMJ and the MCM, not surprising given the almost total lack of knowledge about things military by the civilian half of the Washington establishment AND the average run of lawyers.

I would think that military law is somewhat different and separate to civilian law, but even if it was hermetically sealed in operation, what strikes me as significant is that Congress was thinking about it and did so as recently as two years ago. It yet further undercuts the majority's claim in this sense: what kind of national consensus is it when four Justices, both party's presidential candidates and a majority of the last Congress don't believe it?

I don't know if Beldar is correct to predict a revised opinion, but I do think that it's clear that this new information is not going to change the court's mind, which also makes a petition for rehearing, well, no less futile than usual. What is the court going to do? It has already thrown Atkins "consistency of the direction of change" test overboard, so even though the UCMJ revision adds evidence to the case that the direction of change is expansionist, the court's reasoning is already impervious to it. And is one more jurisdiction permitting it really going to tip the balance? If we take the counting heads test seriously, theoretically, one more jurisdiction has to be the tipping point at some stage - but are we really to think that the tipping point is seven jurisdictions instead of six?

Moreover, why would we take the counting heads test seriously ? The majority in this line of cases has not been shy in confessing that they view it as important that "our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." In Kennedy, the majority admitted that these cases are unprincipled (the court's death penalty jurisprudence "is still in search of a unifying principle"), and we have seen that the various supposed empirical tests the court uses vacillate wildly (sometimes we count heads; sometimes we care about the direction of change; the rapidity of change is or is not a factor depending on the result that the court wants to reach). I think that these tests are a plainly a figleaf to cover the court's embarasment at bringing their "own judgment" - and nothing else - "to bear on the question of the acceptability of the death penalty under the Eighth Amendment." The empirical indicia offered are manipulated to provide empirical cover that suggests the result that the court prefers (or at least doesn't foreclose it), creating the illusion that the court's discretion is bring brought in at the last minute to break a tie.

I beieve America is slowly waking up to the unacceptability of some of the most momentous cultural, electoral, military, and criminal law decisions of the last 25 years solely determined by how Sandra Day O'Connor, now Anthony Kennedy felt when they got up one day to vote on matters.

Time to overturn Marbury v Madison? Perhaps. All it takes is a President with the stones of a Jefferson, Andrew Jackson, Lincoln, or FDR. I'd love to see the Day, since it has been a long time - where The People, Congress, or a President - once again shake loose of blind obediance to Court usurpations.

The situation might be more acceptable with O'Connor and Kennedy widely credited with Godlike Wisdom and thus bearing out the "genius" of the American polity placing then in such a position. But they were not.

A. O'Connor's opinions were sometimes so vapid, so unreasoned, and so full of two-bit Arizonan legislative magic tests and conditions she pulled out of her ass - that a 6th grader, let alone Scalia, could drive a tank through the holes in her judicial logic.

B. Anothony Kennedy has been described as a man whose vanity and self-esteem has grown each year he was on the Court. Who relishes the power of being the Final Word in America. Who is now a Transnationalist like Breyer and Ginsberg, and deeply concerned with how well the Europe Elite he lives in on every summer break will see his "Final Word" on matters.

Nor is the Court, staffed with under 70 people not including the Sainted 9, and including couple of dozen Clerks with no knowledge of life after college - really equipped to have the body of information needed to make reasoned judgments on complex issues when they create new law, war conduct, culture and ways the Court orders the rest of America to act..

The Court by it's nature lacks the time and resources to research and analyze all consequences of it's rulings. Thus, they are oblivious to the spillover into other areas of America a particular decision may have - for by their nature, even when legislating from the bench, those calls are made from inside the "silo" of a narrow case they focus on, rather than in putting the case in context with other critical American functions or values impacted by their decision that exist outside the case parameters.

And with incomplete research capacity, I suppose you can blame matters like the briefers failing to teach the Court about what truly are the vital bits of info - like AQ truly IS an internationally organized enemy combat force, and really, the public DOES want certain child-raping monsters to have the possibility of the Death Penalty.

But even if the Court declared itself above the other Branches and in need of massive staff increases to better lead the nation - it still wouldn't work if the final call came down to how one vapid, feckless woman playing legislator felt, or how a smug man feared Europeans would see him if he ruled "wrong".

Cedarford, you forget that the taproot of judicial review is not Marbury but the original meaning of Article III. As I said op. cit., "[h]ostility to judicial review motivated by hostility to judicial mistakes is a poor counterargument to the text and amassed historical evidence of the original meaning of Article III, to Marshall's reasoning in Marbury, and to two centuries of tradition." It is, emphatically, the province and the duty of the judiciary to say what the law is - even when they're wrong.

Since when are judges supposed to look on their own for authority? I thought our adversarial legal system ensured that all relevant law and facts would be presented in the adversaries' enlightened self-interest.

There was a similar embarrassing mistake noted in the blogosphere a while ago, involving a mischaracterization by the Court of the procedural posture of Miller v. United States. Did the Court correct that one?

Simon, I get the intent that the Judiciary is the final word on law and there would be no great controversy if the Court limited itself to interpreting what is written in the Constitution and not making stuff up not written in law as new law as it emerged fresh from O'Connor's, Warren's, or Kennedy's rectum.

But as is, it is about the Court methodically usurping powers of the other "co-equal Branches" and forcing some of the most momentous decisions on America on the opinion of one Person who stands apart from a plurality that now vote predictably. People unaccountable, increasingly ruling on nebulous calls based on nothing rooted in the Constitution but emenationa and penumbras. Or foreign laws and customs.Routinely doing second guesses of other Branches based on dubious or incomplete data far onferior to what the original decision-makers had. And the Justice's own personality, ego, affiliation with the politics of the Federalists or ACLU predicting how 4 of the Justices will vote with near-100% certainty on critical cultural, criminal, or military issues.

Unlike you, Simon, I'm not a lawyer, but a dabbler in US, European, and Japanese/Filipino history, focus on legal.. as a hobby and use of one of my otherwise unused degrees,. But from that, I know a broken system when I see it. For now, only the mystique of the court and obedience born of habit prevent major reform.It will take a realization that much in the US system is broken and not working well - and fixes to SCOTUS, the Senate, Lawsuit Gridlock are an absolute necessity - but we seem to be descending there quite nicely these days.

Especially now with The People's Recourse, Amending the Constitution, totally broken on adressing any matter of import since 1962 (the Poll Tax). And no longer viable as a check on Judicial overreach or allowing the People to revise and update Their Constitution in almost a half-century of a rapidly changing world and American society.

Cedarford said..."Simon, I get the intent that the Judiciary is the final word on law and there would be no great controversy if the Court limited itself to interpreting what is written in the Constitution and not making stuff up not written in law as new law....

As I said in the post linked above, though, that is an argument against the personnel, not the institution. The remedy is better judges not the hobbling of the third branch.

For example, I am minded to agree with the Exxon dissenters that while the court certainly had the power to cap punitive damages in a maritime case, it shares concurrent custody of those rules with Congress, and it would have been better to defer to the legislature. Although we should avoid inferring Congressional policy from Congressional silence (the absence of a statute should not be presumed to represent an affirmative Congressional decision not to regulate), we should also keep in mind that the legislature is perfectly capable of undoing the court's damages ratio if it chooses to do so. Likewise, if Congress does not like what the court has done in a statutory case, it is free to change the law. (Moreover, by chumming the waters, the court can sometimes unintentionally provoke Congress into doing something that later produces a case in which the court can deal with more fundamental problems that it might otherwise not have been able to reach. See City of Boerne v. Flores, 521 U.S. 507 (1997)).

Only in the Constitutional arena do the court's decisions raise serious problems, because the Constitution is tough to amend, as you point out. In the first instance, I would again point out that this calls for better judges, not the constriction of the judicial role. Judges often play a countermajoritarian role against a Congress that wishes to aggrandize its power at the expense of the Constitution, e.g. United States v. Lopez, 514 U.S. 549 (1995), sometimes even with through policies that are popular and good public policy, yet unconstitutionally bad federalism, e.g. United States v. Morrison, 529 U.S. 598 (2000). Indeed, sometimes the full measure of the wisdom of the court's countermajoritarian wrist-slapping is not immediately apparent. See Althouse, The Vigor of the Anti-Commandeering Doctrine in Times of Terror, 69 Brook. L. Rev. 1231 (2004) (discussing Printz v. United States, 521 U.S. 898 (1997)); cf. Morrison v. Olson, 487 U.S. 654 (1988) (Scalia, J., dissenting). We should be careful before assuming that what is unpopular or unathomable today is wrong - or, still less, should be "corrected."

Some decisions are mistakes, though, and should be corrected. That is the role of Article V. Earlier this year, at the Federalist Society Student Symposium, Prof. Hills advanced a similar idea - that Article V is broken. I asked him to elaborate, and he did so here. But while he makes one of the better arguments for his position that I've seen, as my reply in the comments to his post indicates, I don't find his argument persuasive, and you can infer my view of the lesser arguments. I emphatically reject the argument that Article V is broken; to the contrary, it is doing precisely what it was designed to do: stalling ill-considered change. In two centuries, we have adopted twenty-seven amendments; only two of them have been mistakes, and a third served primarily to repeal the second mistake. (The reader will infer that I think prohibition was a mistake, and for sake of clarity, my view is that the first mistake was the Seventeenth Amendment.) That's an astonishing success, from my perspective.

Yet some argue that Article V has somehow "failed." Such arguments -- when they are anything more than shorthand for frustration at inability to make a specific change -- rests in the deeply flawed premise that Article V does nothing more than facilitate change. Like much of law, Article V is a vector not an arrow, and the procedural and substative limitations it contains are as much a part of the law as are its putative purpose. See Easterbrook, The Role of Original Intent in Statutory Construction, 11 Harv. J.L. & P.P. 59, 60-1 (1994); Rodriguez v. United States, 480 U.S. 522, 525-6 (1987) (per curiam). By "preventing the ratification of amendments that don't rest on a consensus enjoying genuinely broad-based and sustained support among the American people," Article V protects the nation - and, more importantly, the Constitution - from the designs of factions, "a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community." The Federalist No. 10 (Madison). It very nearly failed, for example, when the ill-considered Equal Rights Amendment came close to ratification; ultimately, however, the failure of that amendment neatly showcases that Article V works very well. When a proposal does meet the standards noted above, that is, when it enjoys broad-based and sustained support, though, history shows that Article V permits such measures to pass - and, unfortunately (as for example the Seventeenth Amendment), cannot stop them when they are mistakes.

I think it is worth updating your pot to point out the ironic last para of the NYT story you cited:

No one in the military has been charged with a capital crime yet under the revised provision. And despite the flurry of activity surrounding the death penalty, the military has not in fact executed anyone for decades. Its last execution took place on April 13, 1961, when Pvt. John A. Bennett was put to death by hanging. His crime: the rape of an 11-year-old girl.

so the Military doesn't apply the death penalty much, but the last time it did, it was for the crime at question. Rape of a child. Pretty much on point, hehe?

Paul, you are not seeing how the missed fact relates to the Court's analysis. The assessment of whether there is a right took into account the number of states that had the death penalty for raping a child and noted that it didn't exist in federal law. That affected the pronouncement that evolving standards of decency supported the right. If the Court had had to face the fact that Congress had adopted the death penalty for child rape recently, it would have been much harder to declare the existence of a right. I'm not just being a stickler for factual errors. I'm talking about something that is bound up with the analysis of the right.

Simon - Of course I disagree with you on the flaws being the personnel selected instead of institutional, and the Amending Process broken for half a century in a time of the rapidest global change ever not being "right to be so difficult to Amend", but wrong in perpetuating Stasis. By your reasoning of how great it would be to delay rectifying an Amendment mistake or a fundamental Constitutional flaw -

Prohibition would be best slavishly obeyed until at least 50, maybe 80 years (in the case of slavery Amended out by the XIII) had passed. Which would have allowed organized special interest groups to keep alcohol illegal, but widely available, not from 1919-33, but until 1969 or possibly 1999.

That said, I appreciate the attention to detail and high quality of your countering comments about my points.

While being confident that America is like an arrogant Japan smug and satisfied that their ways, laws, and government were "just the best!!" until Perry's Fleet arrived.

Cedarford,Worth remembering is that while the Japanese were smug and self-satisfied when they encountered Admiral Perry in 1853, they were in similar mood when they encountered Admiral Rozhestvensky in 1905.

Anyway, to business. You write that "the Amending Process [has been] broken for half a century in a time of the rapidest global change ever." I've already explained above why I think that "broken" is not an accurate characterization, so no need to dwell on that. You advance at least two other points implicitly, I think: that "in a time of the rapid[] global change," the Constitution must change, and that it is problematic if it does not do so.

I don't think either of those hold. There is no reason to suppose that changes in technology require changes in the Constitution; as I said two months ago (and Justice Scalia later echoed in Heller, see slip op. at 8), "[t]he framers need not have anticipated the development of the internet to protect speech conducted through it from government regulation, see Reno v. ACLU, 521 U.S. 844 (1997), or the development of infrared search technologies to protect warrantless searches using the same, see Kyllo v. United States, 533 U.S. 27 (2001)." In my view, the Constitution has a limited domain: it is primarily about structure and process. It creates a framework for the settling of issues rather than fixing definite answers, and then subtracts a few - a very few - fundamental questions from the democratic process. That kind of Constitution, it seems to me, is inherently flexible (which is one reason why Ron Paul is misguided in talking about "Constitution-sized government": the Constitution is flexible enough to permit government of many, albeit not all, sizes). A structural constitution that leaves most important questions to the democratic process need not change in the face of changes, be they rapid or slow, global or localized.

The friction between the Constitution and the modern world comes in the rights-bearing provisions: Does habeas corpus apply to detainees? Does the First Amendment prevent suppresion of jihad advocacy? Does the Fourth Amendment prevent needful surveillance of terrorists? Does the confrontation clause discourage reporting of rape and child abuse? Does the Fourteenth Amendment permit the precise evil it was adopted to abolish, compare Breyer, Active Liberty (2005) with Sacks, The Supreme Court, 1953 Term--Foreword, 68 Harv. L. Rev 96 (1954); School Cases, 127 S. Ct. 2738 (Thomas, J., concurring)? Must any of these provisions be read to be problematic in the first place? and so forth. Even if we find that the Constitution is simply irreconcilably in tension with what is felt to be a needful policy goal, however, it does not follow that it is a problem that Article V prevents the change. Humans are imperfect creatures. Our reason is imperfect and our foresight poor. What we believe is of critical importance is not always of any importance, and what we believe is a narrowly-tailored remedy is not always so narrow. It may be that on mature reflection, cooler heads will prevail: the problem that an amendment might "fix" later turns out to be less important than we had thought; what we had proposed to give away in exchange for fixing that problem turns out to have been more important than we had realized. Article V does not prevent mistakes, but it does give us more time to think twice, to reconsider, to reflect, and - as in the case of the ERA - to balk.

That brings us to your suggestion that my reasoning (or what you perceive it to be, at any rate) would have seen us adhering to prohibition for decades. But that is ably rebutted by the fact that Article V did not bar repeal of prohibition. As I mentioned in my post above, Article V cannot withstand a sustained, popular desire to do something monumentally stupid, as the Seventeenth Amendment ably attests. The same goes for prohibition: Article V helped resist, but in the end, prohibition represents a failure of political society to come to its senses far more than it represents an indictment of Article V for not holding back the tide any longer. And as we saw, when the nation quickly and broadly reached the consensus that it had made an error, Article V posed no significant obstacle to repealing prohibition. What Article V has done is to prevent an ill-considered reactionary rush-to-judgment; one looks at the hysterical overreaction to Watergate in mere statutory law and shudders to imagine what Congress might have done had the Constitution been easier to amend. Or consider what mischief might have transpired in reaction to Schechter Poultry or Lopez. Or in reaction to 9/11: say it with me, folks - "after 9/11, the country enacted the U.S.A. P.A.T.R.I.O.T. Amendment."

My view is that we should be realistic about human nature and human limitations; we should be cautiousin making changes, and a structure that harmonizes with these realities rather than struggling against them or supposing they can be reformed is to be applauded.

Another thought to consider - it isn't always necessary to amend the Constitution to effectively respond to a decision. Consider Kennedy. The most direct way to respond would be a Constitutional amendment. But consider also that Kennedy does not mean that no state may have or pass a law imposing capital punishment for child rape - it says that the Eighth Amendment forbids the imposition of capital punishment for child rape - prosecutions seeking that penalty, courts sentencing it, prisons carrying it out. But it does so resting on the claim - albeit one that we know to be fictitious - that they are reflecting the evolving standards of decency of American society as reflected by legislation in the states. If 51 jurisdictions now do something that is admittedly unlikely, and react to Kennedy much as they reacted to Furman, passing statutes authorizing the death penalty for rape, and all these statutes in place, one of those jursdictions seeks the death penalty, what do you suppose the Supreme Court will do when that case comes to them?